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December 20, 2006

Should the prosecutor request clemency for Genarlow Wilson?

I just read this detailed article in Atlanta Magazine,which provides lots of background on Genarlow Wilson's crime and trial that landed him in a Georgia prison for 10 years for consensual oral sex. This passage about David McDade, the elected district attorney who prosecuted Wilson, jumped out at me:

McDade says that he agrees that consensual teenage sex, including oral sex, does not necessarily warrant a decade-long prison sentence, but he insists there were no other options to consider in this case as long as that law remains on the books.

As noted in prior posts (linked here), "that law" requiring 10 years for Genarlow Wilson is no longer "on the books," but the Georgia Supreme Court has not given Wilson any relief (details here).

As I suggested here, Wilson's case cries out for executive clemency and now I think David McDade should be the one leading the call for clemency for Genarlow Wilson. Without clemency, Wilson will surely be challenging his sentence in a federal habeas action. Wouldn't the people of Georgia be better served by helping Wilson get justice through a release than by having the state defend a sentence in federal court that no one thinks is just?

» Even More on the Georgia Case from Sex Crimes
I have been too busy to really join the fray on this case, although I have a couple posts on some of the issues involved. So, I'll just direct readers to Professor Berman's continuing excellent coverage at Sentencing Law and [Read More]

Tracked on Dec 20, 2006 6:39:52 PM

Comments

From the same article:

Superior Court Judge David Emerson decided to deny First Offender status to all of the six young men—a distinction that could have automatically lightened their sentences and removed the offenses from their records after they completed probation—because five of the six young men involved in the case had criminal records. McDade says it is “office policy” that no one convicted of child molestation should benefit from First Offender status...
McDade says he further supported the judge’s decision to treat Genarlow—the only one who had not had any run-ins with the law prior to this case—the same as the other boys because he does not believe in offering First Offender status in sex crime cases.

With McDade's refusal to waive an "office policy", I would argue the the prosecutor in the case doesn't want to make a case for clemency. Without playing too much armchair psychiatrist, McDade's continued use of the word "vitims" may betray that he thought and still thinks Wilson guilty of the rape charge.

Posted by: | Dec 20, 2006 10:13:50 AM

Presumably if he didn't think Wilson was guilty of the rape charge, he wouldn't have prosecuted. I don't see how a jury's saying that it wasn't convinced beyond a reasonable doubt would be likely to change Wilson's mind on that score.

Posted by: Bill | Dec 20, 2006 10:34:15 AM

sorry I meant "change MCDADE's mind on that score"

Posted by: Bill | Dec 20, 2006 10:34:52 AM

There are many prosecutors who will concede that the law is unjust out of one side of their mouths. Out of the other side, they'll insist that it's their duty to enforce it literally.

Posted by: Marc Shepherd | Dec 20, 2006 11:23:20 AM

The more you read about this case, the less you feel soory for this guy. Yeah, ten years is too harsh, and yeah the oral sex/vaginal sex distinction is tough, but these guys really went overboard with a 15 yo girl.

Posted by: federalist | Dec 20, 2006 2:32:11 PM

federalist, maybe she just liked giving blowjobs?

Posted by: | Dec 20, 2006 3:04:49 PM

PM, that is sick. Just plain sick. You are talking about a 15 year old girl, and I think we can all agree that it is not good for 15 year old girls to engage in serial fellatio with a bunch of guys. The 17 year old boys who participated in such activity deserve opprobrium. They should have a little more sense (and morality) than this. And I for one have seen very little in the way of understanding on Genarlow's part that what he did was wrong. On an earlier thread I raised the story of the San Antonio Spurs Posse. Are we to simply say that 15 year olds are on their own to resist the advances of older boys who want to, for lack of a better word, gangbang them?

Genarlow's bad choices and victim mentality are, in part, responsible for the environment in which he finds himself. Now, I agree that he has probably learned his lesson, and that continued incarceration is probably not warranted. But the hysteria and accusations of racism are simply unwarranted.

As for Marcus Dixon, one issue that never got teased out was that we have laws against children/adult sex for the simple reason that coercion is often hard to prove. Dixon may or may not have forced the girl to have sex with him. I think though that we need to think long and hard before allowing adults to have sexual relations with 15 year old girls. The sexualization of our children is a problem in our society, and the "anything goes" attitude, I think, is a disservice to them.

One other point. This is not prudishness or anything like that, nor is it born out of religion (as I am an atheist)--it's just a realization that we should all step back and wonder what our children are doing. Hotel sex parties with drugs and alcohol and 15 year old girls are bad. And there are consequences to them. And I would have hoped that Genarlow would have come to some wisdom on this point.

Posted by: federalist | Dec 20, 2006 3:37:50 PM

It is outrageous than any prosecutor could with a straight face say he had no choice. Is there some point at which an attorney's utter fraudulent babble can reach a level so bad that it justifies discipline as conduct unbecoming a lawyer. I'm not saying disbar this guy, but a public letter of admonition wouldn't hurt.

These are the same people who routinely do stuff like accept pleas for having a headlight that doesn't work when the underlying offense is speeding. Or, plea bargain to call an assault case trespassing on agricultural property. And, as we've seen, could have cut a better deal in this case simply by changing a non-binding office policy.

Prosecutors always have the right to be more lenient and the moral obligation to do so when it is the right thing to do in the public interest. The vast majority of the time they do. But, prosecutors like this give the profession a bad name.

There is no excuse for bringing a prosecution, knowing what its natural and probable consequence will be, when you think that the consequences of that act are inappropriate.

It isn't clear that clemency may be granted in this case in Georgia. From the state constitution:

Paragraph I. State Board of Pardons and Paroles. There shall be a State Board of Pardons and Paroles which shall consist of five members appointed by the Governor, subject to confirmation by the Senate. The members of the board in office on June 30, 1983, shall serve out the remainder of their respective terms, provided that the expiration date of the term of any such member shall be December 31 of the year in which the member's term expires. As each term of office expires, the Governor shall appoint a successor as herein provided. All such terms of members shall be for seven years. A chairman shall be selected by the members of the board from its membership.

Paragraph II. Powers and authority. (a) Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.

(b) . . .

(2) The General Assembly may by general law approved by two-thirds of the members elected to each branch of the General Assembly in a roll-call vote provide for minimum mandatory sentences and for sentences which are required to be served in their entirety for persons convicted of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, or aggravated sexual battery and, when so provided by such Act, the board shall not have the authority to consider such persons for pardon, parole, or commutation during that portion of the sentence.

It looks like the Governor doesn't have clemency power which has instead been vested in the board, and that the board doesn't have the right to pardon in this case. Short of a federal appeal or legislative amnesty, I see no recourse whatsoever in this case.

"I think though that we need to think long and hard before allowing adults to have sexual relations with 15 year old girls. The sexualization of our children is a problem in our society, and the "anything goes" attitude, I think, is a disservice to them. "

The victim of this prosecutor, Genarlow, was not an adult so your statement above does not apply. The decision of the prosecutor is the real outrage and injustice in this case; it appears to me that his judgement was based on racism. The prosecutor made a choice to proceed with a prosecution that clearly resulted in an injustice when he could have dropped the charges or offered a reasonable plea (a five year jail term and a lifetime designation as a sex offender for a child who had consentual sex with another child roughly the same in age is unreasonable). Given that the prosecutor's choice in this case is unjust (he even admits the sentence is too long), it is hard to conclude that race is not a factor.

Posted by: canadian guy | Jan 10, 2007 11:32:48 PM

I can't help but point this out - there were 5 others involved as well. They all pled to lesser charges that were offered.

This guy (or maybe upon the advice of his defense attorney who pleads his cases in the press or thinks he can hang a jury despite a juror swearing an oath to follow the law as given to them by the judge), says no to the deal.

Now that he played the game, he wants a "do-over." He should have took the deal that was offered.

Furthermore, when do we decide that a kid can "consent?" Next the argument will be - well, yeah the defendant is 40 years old, but he has the mentality of a 17 year old.

Posted by: Deuce | Jan 11, 2007 1:04:10 PM

I have 3 questions about this case, all of them involving the jury.

1. Should the jurors have been told that the child molestation charge carried a mandatory 10 year prison sentence?

2. In cases that involve a mandatory sentencing upon conviction, should the Jury be aware of what the punishment is?

3. If the jury and found Genarlow to be guilty of Child Molestation based solely on the evidence and the written law, but decided to vote not guilty based on their beliefs that the law was flawed, what would the outcome be?

I guess my point, at least in the last question, is that jurors shouldn't be held to the same rules as lawyers and judges. I think the general public (jurors) should be another line of checks and balances against our Judicial Branch.

Posted by: Justin See | Jan 25, 2007 12:02:36 AM

Not to mention the white school teacher in Georgia who only got 90 days for intercourse with a student. Yes, morally these kids should not have been where they were and doing what they were doing. That's going on all across the country, but they aren't being charged with felonies that ruin their lives. (Apparently Georgia's prison system isn't full enough yet.) Parents everywhere should be more involved and know what their kids are up to...especially the parents of the 15-year-old girl! But 10 years without parole? A law that was taken off the books because of his case, but he still suffers the consequences? I don't see how you can't scream racism in this case. So, tell me -- what age can people start receiving and/or giving oral sex without it being a crime in Georgia. It's all the rage in junior high.

Posted by: Debbie | Jan 25, 2007 10:22:11 AM

I'm white and the only reason they did this to Genarlow is because he's black. This DA McDade might as well wear a white cape and hood. What about prosecuting the girl? Isn't Genarlow a minor also. Glad I live in California, the south is just a bunch of redneck white racists like McDade. I guess they consider it progress for putting this poor kid in jail for 10 years instead of hanging him. When is the black community going to rise up and stop letting these white Nazis be your daddy's?

Posted by: fred | Jan 25, 2007 10:35:25 AM

How jammed would our prisons be if you locked up every high schooler who received oral sex from another high schooler? This is obsurd. Of course I agree that these kids made bad decisions, but the video apparently clearly shows that there was no force involved. Are we so naive to think that a 15 year-old having sex is a rarity? And do we really believe that a 15 year-old lacks the ability to initiate sexual activity?

Someone mentioned that Wilson decided to "play the game." That is just plain ridiculous. By "playing the game" you meant that he was given two fine choices of either being in prison for 5 years or 10 years. Where can I sign up to play this game?!

Are there any other cases on record in Georgia that have been prosecuted under this statute?

Posted by: JT | Jan 25, 2007 11:15:32 AM

It appears McDade and Barker are going down the same path as Nyfong (Duke Rape Case). How can an adult female teacher get only 90 days for molesting a student (an actual sex offense), and Mr. Wilson gets 10 years for having consensual sex. Okay, so the so-called victim was 15 at the time and it was wrong for that boy (and the so-called victim) to participate in the act, but COME ON America, the way our society is today are we that naive to think it's isolated to just those two kids. And what happened to the so-called victim (whom everyone agreed consented to the act)? Is she doing any time? Did she get convicted? I agree with Debbie (from California), the South is so ass-backwards it's actually laughable. I know because I live in Louisiana and see it everyday. McDade and Barker - are you guys lily-white?? You preach about following the "letter of the law", but I'll wager you break the law everyday as we all do when we travel more than the speed limit, roll thru a stop sign, etc... You get my drift. Let the kid go for pete's sake! You two epitomize the publics perception of lawyers as obstinate, mulish bureaucrats (my apologies to all of the truly good lawyers out there).

Posted by: Tim | Jan 25, 2007 1:18:51 PM

"Outrageous" is the only word that comes close and even that word is inadequate.

My thoughts:
1. Several posters here continue the outrage by claiming that Genarlow is somehow responsible. One poster moralizes about sexualizing our young, a serious problem, but did you forget that Genarlow was 17, a youth himself?! How, in the mind of a rational human, can you attempt to hold a 17 year-old entirely responsible for behavior that takes place between kids two years apart in age? Hyper-sexualization of our youth is a huge social ill that must be addressed, but the sexual behavior BETWEEN our youth is NOT a matter of crminal law.

I'm a white, very conservative Christian from Utah (yeah, guess which specific religion) so let me be clear: I find Gnarlow's behavior horrible and if my son had behaved in such a way, there would be huge repercussions . . . at home.

2. Those who cry racism do so a bit unfairly. You don't know what Barker and McDade were thinking and you offer no support for systemic racist prosecution. My opinion (notice I don't claim to know for sure) is that we have another Nifong here, a D.A. looking for scalps to hang on his wall.

3. If McDade and Barker survive another election, the citizens of Douglas County do not deserve the democracy granted them. These two clowns should be handed hats with golden arches on them and told to NEVER darken the doorway of a courthouse again.

Posted by: Bruce | Jan 25, 2007 2:03:42 PM

This case, from far away, is a spot-on case for extremely unreflected institutionalised racism. Anyone within the USA is not supposed to add 2 and 2 together as they are far gone within this system of racial divide, but from hear it looks pretty sky clear. As we are closely interested in any development of the USA away from such attitudes, there are no words to describe the bewilderment in this instance. It's been an issue for the last 50 years, and it still is, and if you can, just leave.

First, the prosecutor has no history of jailing white minors for oral sex. This means that clearly, handling of any such situation when other ethnicities are involved need to be analyzed for a proper understanding. You will then invariably find out that any normal judge will throw out such a case of, say, some white minors having oral or anal sex, if not any normal police officer will close the file beforehand. Normally, this should not go to court.

Secondly, the active part was performed by a 15 year-old girl - not by the person sitting in jail. Why pick on the boy then? Because he is a model-person, a well performing, good looking, sport loving and intelligent guy. Black guy, by the way. White racist prosecutors hate just these, and they so hate them. So no wonder McDade went against what he quite apparently hates so much: intelligent and well performing black people. Having all of them permanently listed as sexual offenders as such *is* a hate crime, and nothing else. Not in a million years will his argument - that there is an old Georgia law - be understood by anyone outside of some White racists in the US south: heard, yes, but not understood. Not in a million years.

Thirdly, oral sex is a fine thing - but envy today is a real vice. We all know without any testimony of McDade that deep down, prosecution envied this guy they ended up jailing far more than they will ever admit. Eat this: no Prosecutor of the Year 2005 award and no other marker will hide the fact that this court sentence ultimately highlights THE INDIVIDUAL SEXUAL FAILURE of all acting judicial men involved in this - prosecutor and judge. It serves as a warning to anyone on this planet - if you have any personal proximity to sex other than the way the Virgin Mary was supposed to have it received (sperm containing suppositories?), stay way from the USA.

The court sentence has no bearing whatsoever other than ruining an already ruined reputation further.

Just don't go there, and if you do, DO NOTHING. Stay away from things. Sit when you are supposed to sit, sleep when you are supposed to sleep, but let that be it. You don't miss much anyway. They are fastly running out of tax money, you can't get anywhere without wasting sums on transport as the place is so vast, and they're more than backwards in terms of their racial and religious attitudes. This court decision rightfully supports otherwise somewhat slanted prejudice about the White AmeriKKKan South, and I can not say that this support is favorable in the slightest way.

Posted by: Turander Becht | Jan 27, 2007 12:29:41 PM

I am an Argentine teacher, in constant contact with colleagues and students all over Latin America. As an admirer of the US, I have frequent arguments defending America as the best country in the world, all considering. Frankly, if Mr. Genarlow Wilson is not released, I will have to keep my mouth shut in the future when my contacts start criticizing the US. I hope the Governor or some higher court reverse this ridiculous conviction that so damages the prestige of the US.

Posted by: Carlos Kasis | Jan 27, 2007 12:38:18 PM

SET GENARLOW FREE!!!! MCDADE AND THE REST OF THAT PROSECUTION OFFICE WILL HAVE TO FACE THEIR JUSTICE AND I WILL BE SO GLAD!! YOU SET THAT YOUNG BRIGHT INTELLIGENT MAN FREE. IT HURTS THAT THIS KIND OF STUFF CAN GO ON IN THIS COUNTRY AT THIS TIME- I AM ASHAME TO BE AN AMERICAN.....BLACK, WHITE, OR ANY RACE!!

Posted by: debra | Feb 7, 2007 3:38:58 PM

Teacher, principal mother , ashamed Us citizen. Free this youg man.

Posted by: marcia | Jun 7, 2007 5:51:27 AM

If a 15 year old consensually agrees to give 17-year olds blowjobs, the government has no business sending any of them to jail--for TEN YEARS no less, or marking them for life as "sex offenders". By this measure, tens if not hundreds of millions of Americans should be in jail as sex offenders... the religious conservatives are just as bad and dangerous as any type of teen sexual behavior, this case is just the tip of the iceberg.

Posted by: kyle | Jun 11, 2007 1:21:37 PM

I'm not involved in the legal profession, nor will I be moving to Georgia anytime soon. I can't be too critical of the references to backwardness in these posts since I've lived most of my life in Tennessee. It seems to me that the problem in cases such as this is the congenital inability of prosecutors to say "I was wrong" or "this outcome is wrong". Shakespeare's Hamlet referred to this attitude as "the insolence of office", listing experiences that "make calamity of so long life".

Citing the letter of the law always seems like a dodge, when the fact of the matter is that authorities such as those involved in this case often have wide latitude to act. I loved the above comment that juries should be an additional check and balance on the criminal justice system. When lawyers act the way D.A. McDade and A.G. Baker have in this case I pray for their punishment and public embarassment. Do either of these men have contact with Mike Nifong or Robert Morgenthau? It seems they've at least been taking notes, bringing wrongful prosecutions and all that....

Posted by: John P Forshey | Aug 5, 2007 10:59:25 PM

You have to go by the way the law is written. Although I haven't seen the law, if it is written that below the age of 16 a person cannot have consentual sex then a person can't say it's consensual. If a child is 15 or 10 or 8, it makes no difference because if a person under 16 has sex with a person over 16 it is not consensual by law. The question is whether an underage person is emotionally capable to give consensual sex. The law is to protect children. You can't have a law where there isn't a clear established age cut off and expect the courts to judge any way they want. Maybe people around there will be more careful about hooking up with underage people. Granted it was a severe penalty. He put himself there though.

Secondly it has been reported that this was a party of underage people engaging in drugs, alcohol and group sex. I don't know why there wasn't adult supervision. It doesn't sound like a place where squeeky clean up standing people hang out. So the idea of painting Wilson as some clean cut honor student with no vices as a victim sounds ridiculous. Seventeen year olds don't belong in that environment and fifteen years olds certainly do not.

Posted by: John | Oct 27, 2007 3:14:24 PM

Federalist, I don't know if you are still keeping up with this blog, but I agree and disagree with you. Yes, Genarlow knew what he was doing was wrong, but on the other hand, what was that girl doing at an unsupervised party getting drunk? . Even the girl in this case admitted she was no innocent victim. His sentence was outrageous, period. Now he has to register as a sex offender. And for what? Being a horny teenage male? And, this pathetic cop out of 'his sentence was harsh but that was the law and my hands were tied' makes me sick! The judge hands down the sentence. The judge has the right to overturn the jury's decision. There is no excuse. Why go to law school if you're not willing to make a difference? To rock the boat? Let's be honest. What does the future look like for this young man? He is a black male registered sex offender. Are any employers going to take the time to look up his case? Or are they going to dump his application in the trash? Now he has to figure out how to pay his bills. See where I'm going here? As a Black working class single mother how do I tell my child that , no, you are not equal to your white friends. And while they can recover from childhood mistakes, you will be made to suffer for the rest of your natural life.

Posted by: loi wade | Oct 29, 2007 11:51:27 AM

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